On Trademark Reverse Passing-Off

The case of "Maple leaf" v. "Crocodile", which took place in 1994, can be treated as the first case involving reverse passing-off in our country. It caused a deep and lasting discussion in intellectual property field to reverse passing-off. Especially the nature of reverse passing-off and the application of law to this action have been the focus of discussion among scholars in our country. The "Trademark Law of the People's Republic of China" revised in 2001, includes the action in the law, regulates clearly that trademark reverse passing-off is a kind of infringement of exclusive right to use trademark. So, the judicial departments could avoid the presenting awkward situation that there are no laws and regulations to apply while dealing with this kind of case in the future. The paper begins with the general introduction to trademark reverse passing-off, then makes a deep analysis of the nature of trademark reverse passing-off and the application of law to it. At last, it points out the insufficiency of trademark law and questions in legal practice, and puts forward some improvement suggestions.The paper includes four parts:First part is the general view of trademark reverse passing-off. This part begins with the conception of trademark reverse passing-off, then introduces the legal characteristic of this kind of action, by comparing the similarities and differences between reverse passing-off and other actions related to it, further analyzes the action of trademark reverse passing-off. At last, it introduces the origin and development of the theory of reverse passing-off and concludes the develop tendency of the theory. This part is the basis of the following discussion.Second part is about the cause, constituting elements, form of expression and damage of trademark reverse passing-off. First, it analyzes the cause of trademarkreverse passing-off, and introduces the constituting elements of reverse passing-off as a cause of action for trademark infringement in America. Second, by analyzing two typical cases, it can be seen that reverse passing-off falls into two categories: express reverse passing-off and implied reverse passing-off. At last, it points out that trademark reverse passing-off infringes the rights and interests of trademark owner and consumer, does harm to the competitive atmosphere of marketplace.The third part is about the nature of trademark reverse passing-off and the application of law to it. First, it analyzes the nature of trademark reverse passing-off. From the point of view of trade mark owner, it is a kind of trademark infringement action;From the point of view of consumer's rights and interests, it is a kind of action of swindling consumers;From the point of view of market competition, it is the unfair competition action. Second, it discusses the application of law to trademark reverse passing-off. By comparing different countries' legislation about reverse passing-off, and analyzing the legislations in our country, it concludes that it is better to use the trademark law regulating trademark reverse passing-off.The fourth part is about legislation of trademark reverse passing-off in our country and legal suggestions to it. The provision of item 4 of article 52 of "Trademark Law" revised in 2001 says: "without trademark registrar's consent, change registered trademark and then put the goods into market" infringe the register's exclusive right to use a trademark. This provision makes up legislation space in regulating trademark reverse passing-off. Based on the analysis of insufficiency of trademark law and questions in legal practice, this part puts forward some improvement suggestions of trademark law of our country, hope that it can be helpful in foundation and development of reverse passing-off theory in our country.